Military medical facilities in the service of obstructing justice in war crimes proceedings

The main trial before the War Crimes Department of the High Court in Belgrade in the Trnje case, which was scheduled for September 13 2017, was not held because the defendant Pavle Gavrilović did not appear before the Court, again, because he allegedly fell ill on the day of the trial. His absence was, as in previous occurrences, justified on the basis of medical records issued by the Military Hospital in Niš. The second defendant, Rajko Kozlina, used to use a similar tactics of absence from the trial, with the only difference that he received confirmation of hospitalization from the Belgrade Military Medical Academy. Both defendants are still members of the Army of the Republic of Serbia. The Humanitarian Law Center (HLC) points out that this is a deliberate obstruction by the defense, with the complicity of military medical institutions, and calls on the court to, by at least placing the defendants in custody, put an end to an obvious obstruction of justice.

The indictment charges the defendants with participation in the murder of at least 27 Albanian civilians in the village of Tërnje/Trnje (municipality of Suharekë/Suva Reka, Kosovo), as members of the 549th Motorized Brigade of the Yugoslav Army, on March 25 1999. Among those 27 murdered civilians there were 12 women and 4 children. As the Commander of the Logistics Battalion of the 549th Motorized Brigade, according to the indictment, shortly before the attack on the village, Gavrilović gathered his subordinate officers, among whom was the second defendant Kozlina, and gave them orders, pointing to the village, „that there must not be any survivors“. Kozlina is charged with personally killing at least 17 civilians, as a sergeant and commander of the battle group, acting on the orders of Gavrilović.

The obstruction created by the defendants and their defense in this case is present from the very beginning of the process. The first preliminary hearing, scheduled for February 20 2014, as well as the following three hearings, were postponed due to the absence of the defendants: in the first two occasions because of their alleged health problems, for which they submitted medical records obtained at the Belgrade Military Medical Academy and the Military Hospital in Niš. The first main hearing was held almost a year later, on February 24 2015, and then followed the obstructions again. There was, in fact, a series of delays of main hearings due to alleged health problems of the defendants, again based on the documentation of the same military medical institutions, so in two and a half years, until September 13 2017, only 9 main hearings were held.

This was also observed by the president of the trial chamber, who, at the main trial on February 25 2016 noted that „it happens quite often that he [defendant Pavle Gavrilović] is hospitalized, spends two to three days in the hospital before the trial, and ends his hospital treatment after the canceled hearing.“ The same tactic was used by the defendant Kozlina, so in April 2016 the Office of the War Crimes Prosecutor (OWCP) requested from the court to keep Rajko Kozlina in custody due to „obvious avoidance to appear at the main trial“. However, the trial chamber rejected the OWCP’s request as premature at the very same main hearing.

Due to frequent hospitalization of the defendants during the main trials, the president of the trial chamber ordered their subjection to medical expertise. However, experts of the medical profession based their findings solely on the documents of the military medical institutions which issue the medical records to the two defendants, and not on the immediate medical examination performed by an expert. Their finding was therefore that „according to the documents“, the hospitalization of the defendants was justified. Thus, the defendants were enabled to continue obstructing the proceedings, and the court, the injured parties and the public still do not know whether their health is really at risk before each new trial.

Due to the delay of these proceedings, the injured parties filed a complaint with the court in September 2017, in order to accelerate the proceedings, seeking protection of their right to a trial within a reasonable time.

The Humanitarian Law Center notes that justification of frequent absences from the trial of those accused of war crimes with the documentation from the military medical institutions is not an uncommon practice, since, for example, an identical situation is occurring in the process of recognition of the judgment of the Court of Bosnia and Herzegovina (BiH) for the sentenced General Novak Đukić. In the cases where the accused are not military insurees, there aren’t such frequent justifications with medical records issued by the civilian medical institutions. In other words, the inevitable impression is that the doctors employed in military medical institutions are behind these obstructions, and their possible abuses, which actually constitute a criminal offense, are checked by no one.

Therefore, the Court, instead of unquestioningly accepting the medical records issued by military institutions and delaying hearings on the basis of these records, should take appropriate measures to ensure such a farce is put to a stop. To start with, it should accept the proposal of the OWCP and put the defendants in custody. Custody is an effective legal measure that can ensure the presence of the defendant in the courtroom, and, after all, there are adequate medical facilities that monitor the health condition of the defendants within the detention units. This is the way to avoid the mockery of the victims who regularly follow this trial, but also to fulfil the legal obligation of conducting trials within reasonable time.